Exhibit
10.10


 


AMENDED
AND RESTATED

EMPLOYMENT AGREEMENT


 


This
Employment Agreement (this “Agreement”) is made by and between INVESTools Inc.,
a Delaware corporation (the “Company”), and Lee K. Barba (“Employee”) effective
as of December 6, 2001 (the “Effective Date”).


 


WHEREAS,
the Company is desirous of employing Employee in an executive capacity on the
terms and conditions, and for the consideration, hereinafter set forth for the
period provided herein commencing upon the Effective Date, and Employee is desirous
of employment with the Company on such terms and conditions and for such
consideration.


 


NOW,
THEREFORE, for and in consideration of the mutual promises, covenants and
obligations contained herein, the Company and Employee agree as follows:


 


ARTICLE I

EMPLOYMENT AND DUTIES


 


Section 1.1                                      The
Company agrees to employ Employee and Employee agrees to be employed by the
Company, subject to the terms and conditions of this Agreement, beginning as of
the Effective Date and continuing for the term hereof.


 


Section 1.2                                      From
and after the Effective Date, the Company shall employ Employee in the position
of Executive Vice President of the Company, or in such other positions as the
parties mutually may agree.


 


Section 1.3                                      Employee
agrees to serve in the position referred to in Section 1.2 hereof and to
perform diligently and to the best of his abilities the duties and services
pertaining to such office as set forth in the Bylaws of the Company in effect
on the Effective Date, as well as such additional duties and services
appropriate to such office as the Board of Directors of the Company (the “Board
of Directors”) may reasonably assign to Employee from time to time.


 


Section 1.4                                      Employee
agrees, during the period of his employment by the Company, to devote his full
business time, energy and best efforts to the business and affairs of the
Company and its affiliates and not to engage, directly or indirectly, in any
other business or businesses, whether or not similar to that of the Company,
except with the prior written consent of the Board of Directors. The foregoing
notwithstanding, the parties recognize and agree that Employee may engage in
passive personal investments and charitable or public service activities and
serve on the board of directors of corporations to the extent that such
activities do not conflict with the business and affairs of the Company or
interfere with Employee’s performance of his duties and obligations hereunder.


 


ARTICLE II

TERM AND TERMINATION OF EMPLOYMENT


 


Section 2.1                                      Unless
sooner terminated pursuant to other provisions hereof, the Company agrees to
employ Employee for a three-year period beginning on the Effective Date,


 

















 


and thereafter
automatically extend the term of this Agreement for successive one-year periods
unless and until such time as either party shall give written notice to the
other at least 15 days prior to the expiration of the then current term
that no such automatic extension shall occur, in which event Employee’s
employment shall terminate on the expiration of the then current term.


 


Section 2.2                                      Notwithstanding
the provisions of Section 2.1 hereof, the Company shall have the right to
terminate Employee’s employment under this Agreement at any time in accordance
with the following provisions:


 


(a)          upon Employee’s death;


 


(b)         upon Employee’s becoming incapacitated or
disabled by accident, sickness or other circumstance which impairment (despite
reasonable accommodation) renders him mentally or physically incapable of
performing the duties and services required of him hereunder for a period of at
least 120 consecutive days or for a period of 180 business days during any
12-month period;


 


(c)          for cause, which for purposes of this
Agreement shall mean each of the following:


 


(i)                  a material act or material acts of
dishonesty or disloyalty by Employee adversely affecting the Company;


 


(ii)               Employee’s breach of any of his
obligations of this Agreement;


 


(iii)            Employee’s gross negligence or willful
misconduct in performance of the duties and services required of him pursuant
to this Agreement; or


 


(iv)           Employee’s conviction of a felony, or
Employee’s conviction of a misdemeanor involving moral turpitude.


 


(d)         by “Constructive Termination,” which for
purposes of this Agreement shall mean each of the following:


 


(i)                  a material diminution of Employee’s
responsibilities, including, without limitation, title and reporting
relationship;


 


(ii)               relocation of any New York, New York
office of the Company without the consent of Employee; or


 


(iii)            a material reduction in Employee’s
compensation and benefits received hereunder.


 


(e)          in the sole discretion of the Board of
Directors without cause; provided, however, in such case the
Company shall give 15 days prior written notice to Employee of its
intention to terminate Employee’s employment with the Company and shall
continue to provide compensation to Employee in accordance with the terms set
forth in Section 4.1(e) hereof.


 


Section 2.3                                      Employee
shall have the right to terminate his employment under this


 

















 


Agreement at
any time in accordance with the following provisions:


 


(a)          a breach by the Company of any of its
obligations under this Agreement which, if correctable, remains uncorrected for
30 days following written notice specifying such breach given by Employee
to the Company; or


 


(b)         in the sole discretion of Employee, provided,
however, in such case Employee shall give 15 days prior written
notice to the Company of his intention to terminate his employment with the
Company.


 


Section 2.4                                      If
the Company desires to terminate Employee’s employment hereunder as provided in
Section 2.2 hereof or Employee desires to terminate Employee’s employment
hereunder as provided in Section 2.3 hereof, it or he shall do so by
giving written notice to the other party that it or he has elected to terminate
Employee’s employment hereunder and stating the effective date and reason, if
any, for such termination. In the event of such termination, the provisions of
Articles IV through IX hereof shall continue to apply in accordance with their
terms. Any question as to whether and when there has been a termination of
Employee’s employment, and the cause of such termination, shall be determined
by the Board of Directors in its sole discretion.


 


ARTICLE III

COMPENSATION AND BENEFITS


 


Section 3.1                                      Compensation.  During the term of this Agreement, the Company shall provide
compensation to Employee in the following forms:


 


(a)          Base Salary.  Employee shall receive an annual base salary of $350,000, which
amount shall be subject to annual review by the Board of Directors and/or the
Compensation Committee of the Company for possible increases.


 


(b)         Bonus.


 


(i)                  Employee shall participate in, and
receive an annual bonus pursuant to, the Company’s Executive Committee Annual
Bonus Plan.


 


(ii)               Employee shall participate in, and receive
an annual bonus pursuant to, the Company’s Management Incentive Bonus Plan.


 


(c)          Stock Options.


 


(i)                  Upon approval of the Company’s Board
of Directors, Employee will be granted options to purchase an aggregate of
1,200,000 shares of the Company’s common stock at an exercise price equal to
the per share Fair Market Value (as hereinafter defined) on the date of
grant.  The options will be granted
pursuant to a stock option agreement(s) to be executed by Employee and the
Company as of the date hereof, which stock option agreement(s) will provide,
among other things, that (A) not more than $100,000 worth of the options
granted to Employee (valued at Fair Market Value on the date of grant) first
exercisable in any calendar year will


 

















 


be treated as incentive stock options and the excess, if any, will be
treated as non-qualified options and (B) the options will vest in four equal
annual installments beginning one year from the date of this Agreement; provided,  however,
that all options granted to Employee hereunder shall vest immediately upon a
Change of Control (as hereinafter defined).


 


“Fair
Market Value” means (i) if the Company’s common stock is not listed or admitted
to trade on a national securities exchange and if bid and ask prices for the
common stock are not furnished through NASDAQ or a similar organization, the
value established by the Compensation Committee of the Board of Directors (the
“Compensation Committee”), in its sole discretion; (ii) if the Company’s common
stock is listed or admitted to trade on a national securities exchange or a
national market system, the closing price of the common stock, as published in
the Wall Street Journal, so
listed or admitted to trade on such day or, if there is no trading of the
common stock on such date, then the closing price of the common stock on the
next preceding date on which there was trading in such shares; or (iii) if the
common stock is not listed or admitted to trade on a national securities
exchange or a national market system, the mean between the bid and asked price
for the common stock on such date, as furnished by the National Association of
Securities Dealers, Inc. through NASDAQ or a similar organization if NASDAQ is
no longer reporting such information.


 


(ii)               In addition, Employee shall be eligible
to receive future stock option grants, as determined by the Compensation
Committee.


 


Section 3.2                                      Benefits. 
During the term of this Agreement, Employee shall be afforded the
following benefits as incidences of his employment:


 


(a)          Business and Entertainment Expenses.  Subject to the Company’s standard policies
and procedures with respect to expense reimbursement as applied to its
executive employees generally, the Company will reimburse Employee for, or pay
on behalf of Employee, reasonable and appropriate expenses incurred by Employee
for business related purposes, including dues and fees to approved industry and
professional organizations, and reasonable costs of entertainment incurred in
connection with business development.


 


(b)         Club Membership.  The Company shall reimburse Employee for membership dues at
social or country clubs designated by Employee as mutually agreed by the
Company and Employee.


 


(c)          Other. 
Employee and, to the extent applicable, Employee’s family, dependents
and beneficiaries, shall be allowed to participate in all benefits, plans and
programs, including improvements or modifications of the same, which are now,
or may hereafter be, available to executive employees of the Company generally.
Such benefits, plans and programs may include, without limitation, a profit
sharing plan, a thrift plan, a health insurance or health care plan, life
insurance, disability insurance or a pension plan. The Company shall not,
however, by reason of this paragraph be obligated to institute, maintain, or
refrain from changing, amending or discontinuing,


 

















 


any such benefit plan or program, so long as such changes are similarly
applicable to executive employees of the Company generally.


 


Section 3.3                                      Payroll. 
Employee shall receive all compensation pursuant to this Agreement in
accordance with the Company’s Houston, Texas customary payroll practices with
respect to time and manner of payment.


 


ARTICLE IV

EFFECT OF TERMINATION ON COMPENSATION


 


Section 4.1                                      By
the Company.


 


(a)          Termination Upon Death.  In the event of Employee’s death during the
term of this Agreement, this Agreement will terminate upon the first day of the
month following the Employee’s date of death, and all of Employee’s rights and
benefits provided for in this Agreement will terminate as of such date; provided,
however, that Employee’s estate will be paid Employee’s annual
salary and pro rata bonus through the date of death for a period of six months
after such death occurs and, provided, further, all stock options
referenced in Section 3.1(c) shall vest on Employee’s death, and
Employee’s estate may exercise such options for a period of one year from the
date of termination.


 


(b)         Termination Upon Disability.  If Employee’s employment hereunder is
terminated by the Company pursuant to Section 2.2(b) hereof prior to the
expiration of the then current term, all of Employee’s rights and benefits
provided for in this Agreement will terminate as of such date; provided,
however, that Employee will be paid Employee’s annual salary and pro
rata bonus through the date of termination for a period of six months after
such termination occurs and, provided, further, all stock options
referenced in Section 3.1(c) shall vest effective as of the termination
date, and Employee may exercise such options for a period of one year from the
date of termination.


 


(c)          Termination for Cause.  Employer shall be entitled to terminate
Employee’s employment at any time for cause, as defined by Section 2.2(c).
In the event of termination for cause, all of Employee’s rights and benefits
provided for in this Agreement shall terminate, except as to any accrued and
unpaid base salary provided for in Section 3.1(a).


 


(d)         Termination After Change of Control.  If, within 24 months following a Change
of Control (as hereinafter defined), the Company or its successor terminates
Employee’s employment without cause or by Constructive Termination, Employee
shall receive $637,500 per year for a period of two years.  All unvested stock options referenced in
Section 3.1(c) shall vest effective as of the date of termination and
Employee may exercise such options for a period of 90 days from the date
of termination. Employee shall receive his accrued and unpaid salary and any
accrued and unpaid pro rata bonus through the date of termination, and Employee
will continue to participate in any


 

















 


benefits referenced in Section 3.2(c) for a period of two years
from the date of termination; provided, however, to the extent that any
benefit under Section 3.2(c) cannot be continued during a period when
Employee is not an employee of the Company, the Company shall pay Employee an
amount in cash equal to the economic value of such benefit, such value to be
determined as of the time of termination.


 


In the event that Employee is deemed to have received
an excess parachute payment (as such term is defined in Section 280G(b) of
the Internal Revenue Code of 1986, as amended (the “Code”)) which is subject to
excise taxes (“Excise Taxes”) imposed by Section 4999 of the Code with
respect to compensation paid to Employee pursuant to this Agreement, the
Company shall make a Bonus Payment (as defined below) to Employee when Employee
receives any excess parachute payments. 
“Bonus Payment” means a cash payment equal to the sum of (i) all
Excise Taxes payable by Employee plus (ii) any additional Excise Tax or
federal or state income taxes imposed with respect to the Bonus Payment.


 


“Change of Control” means the happening of any of the
following events:


 


(i)                  The acquisition by any individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”),
of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 50% or more of either (A) the then outstanding
shares of common stock of the Company or (B) the combined voting power of
the then outstanding voting securities of the Company entitled to vote
generally in the election of directors; provided, however, that the following
acquisitions shall not constitute a Change of Control under this subsection
(i): (x) any acquisition directly from the Company (excluding an
acquisition by virtue of the exercise of a conversion privilege), (y) any
acquisition by the Company, or (z) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company; or


 


(ii)               Individuals who, as of the effective
date hereof, constitute the Board of Directors (the “Incumbent Board”) cease
for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the effective
date hereof whose election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board; or


 


(iii)            Approval by the stockholders of the Company
of a complete liquidation or dissolution of the Company or the sale or other
disposition of all or substantially


 

















 


all of the assets of the Company.


 


(e)          Other Events Upon Termination.  If Employee’s employment hereunder shall be
terminated by the Company without cause or by Constructive Termination other
than within 24 months following a Change of Control, Employee shall
receive in accordance with the Company’s then current payroll practices an
amount equal to the sum of (i) Employee’s annual base salary for the year
in which such termination occurs and (ii) the greater of (A) the
target bonuses for each of the four quarters in the year in which such
termination occurs and (B) the actual bonus earned by Employee for the
four fiscal quarters immediately preceding such termination, payable for a
period of time equal to the longer of (i) two years and (ii) the
period of time remaining under the then current term of this Agreement (such
longer period, the “Severance Period”). Employee shall receive his accrued and
unpaid salary and any accrued and unpaid pro rata bonus through the date of
termination, and Employee will continue to participate in any benefits
referenced in Section 3.2(c) for the Severance Period; provided,
however, to the extent that any benefit under Section 3.2(c)
cannot be continued during a period when Employee is not an employee of the
Company, the Company shall pay Employee an amount in cash equal to the economic
value of such benefit, such value to be determined as of the time of
termination. In addition, all stock options referenced in Section 3.1(c)
shall vest effective as of the date of termination, and Employee may exercise
such options for a period of three months from the date of termination.


 


Section 4.2                                      Section 4.2  By Employee.


 


(a)          Breach of Agreement by Company.  If Employee’s employment hereunder shall be
terminated by Employee pursuant to the provisions set forth in
Section 2.3(a) hereof prior to the expiration of the then current term of
this Agreement, Employee shall receive in accordance with the Company’s then
current payroll practices an amount equal to the sum of (i) Employee’s
annual base salary for the year in which such termination occurs and (ii) the
greater of (A) the target bonuses for each of the four quarters in the
year in which such termination occurs and (B) the actual bonus earned by
Employee for the four fiscal quarters immediately preceding such termination,
payable for a period of time equal to the longer of (i) two years and
(ii) the period of time remaining under the then current term of this
Agreement. Employee shall receive his accrued and unpaid salary and any accrued
and unpaid pro rata bonus through the date of termination, and Employee will
continue to participate in any benefits referenced in Section 3.2(c) for
the Severance Period; provided, however, to the extent that any
benefit under Section 3.2(c) cannot be continued during a period when
Employee is not an employee of the Company, the Company shall pay Employee an
amount in cash equal to the economic value of such benefit, such value to be
determined as of the time of termination. In addition, all stock options
referenced in Section 3.1(c) shall vest effective as of the date of
termination, and Employee may exercise such options for a period of three
months from the date of termination.


 


(b)         Voluntary Resignation.  If Employee’s employment hereunder shall be
terminated by


 

















 


Employee pursuant to the provisions set forth in Section 2.3(b)
hereof prior to the expiration of the then current term, then, upon such
termination, subject to COBRA, all compensation and all benefits to Employee
hereunder shall terminate contemporaneously with the termination of such
employment; provided,
however, Employee shall not receive a bonus for the year during
which Employee’s employment terminated or any subsequent year.


 


ARTICLE V

CONFIDENTIAL INFORMATION


 


Section 5.1                                      Company Information.  Employee acknowledges that the Company’s
business is highly competitive and that the Company’s books, records and
documents, technical information concerning its products, equipment, services
and processes, procurement procedures and pricing techniques and the names of
and other information (e.g., credit and financial data) concerning the
Company’s customers and business associates all comprise confidential business
information and trade secrets of the Company (collectively, “Confidential
Information”) which are valuable,
special, and unique assets of the Company which the Company uses in its
business to obtain a competitive advantage over the Company’s competitors which
do not know or use this information. Employee further acknowledges that
protection of the Confidential Information against unauthorized disclosure and
use is of critical importance to the Company in maintaining its competitive
position. Accordingly, Employee hereby agrees that he will not, at any time
during or after his employment by the Company, make any unauthorized disclosure
of any Confidential Information or make any use thereof, except for the benefit
of, and on behalf of, the Company. For the purposes of this Article 5, the
term “Company” shall also include affiliates of the Company.


 


Section 5.2                                      Third Party Information.  Employee acknowledges that, as a result of
his employment by the Company, he may from time to time have access to, or
knowledge of, confidential business information or trade secrets of third
parties, such as customers, suppliers, partners, joint venturers, and the like,
of the Company. Employee agrees to preserve and protect the confidentiality of
such third-party confidential information and trade secrets to the same extent,
and on the same basis, as the Confidential Information.


 


Section 5.3                                      Return of Documents.  All written materials, records and other
documents made by, or coming into the possession of, Employee during the period
of his employment by the Company which contain or disclose the Confidential
Information shall be and remain the property of the Company. Upon request, and
in any event upon termination of Employee’s employment by the Company, for any
reason, he promptly shall deliver the same, and all copies, derivatives and
extracts thereof, to the Company.


 


ARTICLE VI

INVENTIONS, DISCOVERIES AND COPYRIGHTS


 


Section 6.1                                      Inventions and Discoveries.  Employee agrees promptly and freely to
disclose to the Company, in writing, any and all ideas, conceptions,
inventions, improvements, and discoveries, whether patentable or not, which are
conceived or made by Employee, solely or


 

















 


jointly with
another, during the period of his employment by the Company and which are
related to the business or activities of the Company. Employee agrees to assign
and hereby does assign to the Company all his interest in such ideas, conceptions,
inventions, improvements, and discoveries. Employee agrees that, whenever
requested to do so by the Company, he shall assist in the preparation of any
document that the Company shall deem necessary and shall execute any and all
applications, assignments or other instruments that the Company shall deem
necessary, in its sole discretion, to apply for and obtain protection,
including patent protection, for such ideas, conceptions, inventions,
improvements and discoveries in all countries of the world. The obligations in
the preceding sentence shall continue beyond the termination of Employee’s
employment regardless of the reason for such termination.


 


Section 6.2                                      Copyrights.  If during Employee’s employment by the Company, Employee creates
any original work of authorship (each, a “Work”) fixed in any tangible medium
of expression which is the subject matter of copyright (e.g.,
written presentations, computer programs, videotapes, drawings, maps, models,
manuals or brochures) relating to the Company’s business, products, or
services, whether a Work is created solely by Employee or jointly with others,
the Company shall be deemed the author of a Work if the Work is prepared by
Employee in the scope of his employment; or, if the Work is not prepared by Employee
within the scope of his employment but is specially ordered by the Company as a
contribution to a collective work, as a part of a motion picture or other
audiovisual work, as a translation, as a supplementary work, as a compilation
or as an instructional text, then the Work shall be considered to be a work
made for hire and the Company shall be the author of the Work. In the event a
Work is not prepared by Employee within the scope of his employment or is not a
Work specially ordered and deemed to be a work made for hire, then Employee
hereby agrees to assign, and by these presents, does assign, to the Company all
of Employee’s worldwide right, title and interest in and to such Work and all
rights of copyright therein. Both during the period of Employee’s employment by
the Company and thereafter, Employee agrees to assist the Company and its
nominee, at any time, in the protection of the Company’s worldwide right, title
and interest in and to the work and all rights of copyright therein, including but
not limited to, the execution of all formal assignment documents requested by
the Company or its nominee and the execution of all lawful oaths and
applications for registration of copyright in the United States and foreign
countries.


 


Section 6.3                                      Employee
represents that he has not heretofore made any invention or discovery or
prepared any work which is the subject matter of copyright related to the
Company’s business which he wishes to exclude from the provisions of
Section 6.1 and Section 6.2 hereof. As used in this Article VI,
the “Company” shall include affiliates of the Company.


 


ARTICLE VII

NON-COMPETITION


 


Section 7.1                                      The
restrictive covenants contained in this Article VII and in
Article VIII hereof are supported by consideration to Employee hereunder.
As a material incentive for the Company to enter into this Agreement, Employee
hereby agrees that he will not at any time during his employment by the Company
and for a period commencing on the date of termination


 

















 


of his
employment and continuing until the expiration of 24 months (the
“Non-Competition Period”),
directly or indirectly, for himself or for others, in any state of the United
States, or in any foreign country where the Company or any of its affiliates is
then conducting any business:


 


(a)          engage in any business that is directly
competitive with activities conducted by the Company (or any of the Company’s
subsidiaries or divisions), which activities conducted by the Company (or any
of the Company’s subsidiaries or divisions) represent in the aggregate greater
than 25% of the Company’s proforma consolidated revenues in 2001;


 


(b)         render advice or services to, or otherwise
assist, any other person or entity who is engaged, directly or indirectly, in
any business that is directly competitive with activities conducted by the
Company (or any of the Company’s subsidiaries or divisions), which activities
conducted by the Company (or any of the Company’s subsidiaries or divisions)
represent in the aggregate greater than 25% of the Company’s proforma
consolidated revenues in 2001; or


 


(c)          transact any business in any manner
pertaining to suppliers or customers of the Company or any affiliate which, in
any manner, would have, or is likely to have, an adverse effect upon the
Company or any affiliate.


 


The
foregoing shall not prohibit Employee’s continued participation in those
activities in which he is engaged on the date hereof and which have been
disclosed to the Company.


 


Notwithstanding
the foregoing, in the event of termination of this Agreement pursuant to
Section 4.1(d), 4.1(e) or 4.2(a), the prohibitions of this
Article VII shall no longer apply at such time as Employee waives his
right to receive any further payments under Section 4.1(d), 4.1(e) or
4.2(a), as the case may be.


 


Section 7.2                                      Employee
understands that the foregoing restrictions may limit his ability to engage in
a business similar to the Company’s business in specific areas of the world for
the Non-Competition Period, but acknowledges that he will receive sufficiently
high remuneration and other benefits from the Company hereunder to justify such
restriction. In addition to any remedies provided under applicable law, the
Company and Employee agree that during the period the Company is paying
compensation and benefits to Employee pursuant to Articles III or IV hereof,
the Company’s remedy for breach of the provisions of this Article VII
shall include, but shall not be limited to, the termination of all compensation
and all benefits to Employee otherwise provided under this Agreement.


 


Section 7.3                                      It
is expressly understood and agreed that the Company and Employee consider the
restrictions contained in Section 7.1 hereof to be reasonable and
necessary for the purposes of preserving and protecting the good will and
proprietary information of the Company, nevertheless, if any of the aforesaid
restrictions is found by a court having jurisdiction to be unreasonable, over
broad as to geographic area or time or otherwise unenforceable, the parties
intend for the restrictions therein set forth to be modified by such court so
as to be reasonable and enforceable and, as so modified by the court, to be
fully enforced.


 

















 


ARTICLE VIII

SOLICITATION OF EMPLOYEES


 


During
the term of his employment by the Company and thereafter for the
Non-Competition Period, Employee shall not, on his own behalf or on behalf of
any other person, partnership, entity, association, or corporation, hire or
seek to hire any non-clerical or non-secretarial employee of the Company or in
any other manner attempt directly or indirectly to influence, induce, or
encourage any non-clerical or non-secretarial employee of the Company to leave
the employment of the Company, nor shall he use or disclose to any person,
partnership, entity, association, or corporation any information concerning the
names, addresses or personal telephone numbers of any employees of the Company.


 


ARTICLE IX

MISCELLANEOUS


 


Section 9.1                                      Notices.  For purposes of this Agreement, notices and
all other communications provided for herein shall be in writing and shall be
deemed to have been duly given when personally delivered or when mailed by
United States registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:


 


	
  If to the Company to:

  	
  INVESTools
  Inc.

  5959 Corporate Drive, Suite 2000

  Houston, TX 77036

  Attention: Chairman of the Compensation
  Committee

  
	
   

  	
   

  
	
  If to Employee to:

  	
  Lee
  K. Barba

  P.O. Box 587

  Bangall, New York 12506

  



 


or
to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.


 


Section 9.2                                      Applicable Law, Jurisdiction and Venue.  This Agreement is entered into under, and
shall be governed for all purposes by, the laws of the State of Texas. Any suit
by the Company to enforce any right hereunder or to obtain a declaration of any
right or obligation hereunder may, at the sole option of the Company, be
brought (i) in any court of competent jurisdiction in the State of Texas
or (ii) in any court of competent jurisdiction where jurisdiction may be
had over Employee. Employee hereby expressly consents to the jurisdiction of
the foregoing courts for such purposes and to the appointment of the Secretary
of State for the State of Texas as his agent for service of process.


 


Section 9.3                                      No Waiver.  No failure by either party hereto at any time to give notice of
any breach by the other party of, or to require compliance with, any condition
or provision of this Agreement shall (i) be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time or (ii) preclude insistence upon strict compliance in the future.


 

















 


Section 9.4                                      Severability.  If a court of competent jurisdiction determines that any
provision of this Agreement is invalid or unenforceable, then the invalidity or
unenforceability of that provision shall not affect the validity or
enforceability of any other provision of this Agreement, and all other
provisions shall remain in full force and effect.


 


Section 9.5                                      Counterparts.  This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which together will
constitute one and the same Agreement.


 


Section 9.6                                      Withholding of Taxes.  The Company may withhold from any benefits
payable under this Agreement all federal, state, city or other taxes as may be
required pursuant to any law or governmental regulation or ruling.


 


Section 9.7                                      Headings. 
The paragraph headings have been inserted for purposes of convenience
and shall not be used for interpretive purposes.


 


Section 9.8                                      Affiliate.  As used in this Agreement, “affiliate” shall mean any person or
entity which directly or indirectly through one or more intermediaries owns or
controls, is owned or controlled by, or is under common ownership or control
with, the Company.


 


Section 9.9                                      Assignment.  This Agreement, and the rights and obligations of the parties
hereunder, are personal and neither this Agreement, nor any right, benefit or
obligation of either party hereto, shall be subject to voluntary or involuntary
assignment, alienation or transfer, whether by operation of law or otherwise,
without the prior written consent of the other party except that vested rights
to payment shall be subject to devise, and shall descend in accordance with
applicable laws of inheritance.


 


Section 9.10                                Legal Fees.  If, prior to a Change of Control, either party institutes any
legal action to enforce his or its rights under, or to recover damages for
breach of this Agreement, the Company shall pay up to an aggregate of $10,000
of Employee’s actual expenses incurred in pursuit or defense of such legal
action.


 


If,
following a Change of Control, either party institutes any legal action to
enforce his or its rights under, or to recover damages for breach of this
Agreement, the “prevailing party” in such action shall be entitled to recover
from the other party any actual expenses for attorney’s fees and disbursements
incurred by him or it. For these purposes, a party shall be considered a “prevailing
party” if and only if the parties agree to such characterization of a party as
a “prevailing party” or a final order of a court specifically recites that such
party is a “prevailing party.”


 


Section 9.11                                Term. 
This Agreement has a term co-extensive with the term of employment as
defined in Section 2.1 hereof. Termination of this Agreement pursuant to
the provisions of Section 2.1 hereof shall not affect any right or
obligation of either party hereto which is accrued or vested prior to or upon
such termination or the rights and set forth in Articles IV, V, VI and VII
hereof.


 


Section 9.12                                Entire Agreement.  This Agreement constitutes the entire
agreement of the parties with regard to the subject matter hereof, and contains
all the covenants, promises,


 

















 


representations,
warranties and agreements between the parties with respect to employment of
Employee by the Company. Each party to this Agreement acknowledges that no
representation, inducement, promise or agreement, oral or written, has been made
by either party, or by anyone acting on behalf of either party, which is not
embodied herein, and that no agreement, statement, or promise relating to the
employment of Employee by the Company, which is not contained in this
Agreement, shall be valid or binding. Any modification of this Agreement will
be effective only if it is in writing and signed by the party to be charged.


 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the Effective Date.


 


	
   

  	
  INVESTools
  Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul A. Helbling

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:  Paul A. Helbling

  
	
   

  	
   

  
	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Lee K. Barba

  	
   

  
	
   

  	
  Lee
  K. Barba